The Myths of Case Valuation

Often, it seems that the defendant’s insurance carrier dictates the value of a case for settlement purposes. Plaintiff’s counsel submits the plaintiff’s medical bills, records and reports, documentation of the plaintiff’s lost income, and perhaps some photographs depicting the plaintiff’s injuries and the property damage the vehicles sustained in the wreck. Then, the adjuster comes to the mediation to tell you how much the defendant’s insurance company is willing to pay to resolve the claim. What you have to say seems to have little, if any, impact on that pre-determined figure. Sometimes that figure has been reached by applying a formula- like multiplying the plaintiff’s medical expenses by three and then adding in her lost income. Sometimes a computer program like Colossus has determined the value of the case. However neither a formula nor a computer program should dictate the value of a case.

The truth is that there are no cookie-cutter cases. Each case is unique. Each has its own unique strengths and weaknesses. Just as you would present the unique qualities of your case to a jury, the same qualities should be communicated to the defense attorney, the adjuster, and the claims committee. Your client is unique. The case is unique. This must be emphasized or you risk having your case treated as “just another garden variety claim.”

A settlement documentary can be a useful tool in enhancing the value of your client’s case in the eyes of the defense counsel and the defendant’s insurance carrier. It can communicate the unique qualities of your client and her case in a way that the written records, bills and even photographs cannot.

Another challenge trial attorney face is that various aspects of their case are filtered when the defense attorney presents his analysis to the claims committee. The defense attorney’s personal opinions about your client, his interpretation of the medical records or what the doctors have said in their depositions, et cetera, may cause the real red meat of your case to be thrown to the dogs rather than tossed into the grinder. The adjuster shows up at mediation and negotiates based on the impressions of the defense attorney rather than any firsthand knowledge about our client or the case. The decision maker has been insulated from the information required to make a decision.

Typically, the adjuster has not attended the depositions of the parties, the eyewitnesses, or the doctors or other experts. In many cases, he has never even met the plaintiff or his own insured. Instead, the adjuster typically relies only on what has been reported to him by defense counsel. Those reports may or may not adequately describe the severity of your client’s injury, the strength of the medical evidence regarding causation and permanency, the quality of your client as a witness, et cetera. A video settlement documentary can remedy that problem.